Arrest judges you disagree with? Seriously, Newt?

This must be “Make a Mockery of the Constitution Month” and the organizers forgot to send out a news release. Seriously. First Sen. Dick Durbin wants to require the U.S. Supreme Court to install TV cameras, now GOP presidential frontrunner Newt Gingrich levels sustained fire on the federal judiciary over several days, saying that he would abolish whole courts if necessary to eliminate activist judges, bring impeachment charges against them, have Congress subpoena judges and require them to explain disagreeable rulings and if necessary have the U.S. Marshals Service round up and arrest judges to compel their appearance.

None of those seem practical. Only two seem constitutional at first glance and both those have far higher threshholds than Gingrich’s easygoing description seems to suggest.

The abolition of an entire federal court is no mean feat, requiring at minimum specific congressional action that seems, um, unlikely at best. (Here he’s probably talking about the 9th Circuit Court of Appeals, based in California, which he’s suggested abolishing before because of its undeniably left-leaning cadre of judges.) Plus, then you have to appoint enough judges in a new circuit to hear those cases.

Impeachment of judges is also no easy matter, nor is any impreachment. In the more than 220 years of the republic, only 19 federal officials have actually been impeached, 15 of them judges. Eight of those judges were removed from office. The charges have stemmed mainly from official, blatant corruption, a far cry from issuing rulings with which other powerful individuals disagree. Indeed, Congress has more or less stuck with a strict, narrow (dare I say conservative?) definition of “high crimes and misdemeanors” when it comes to judicial impeachments. Congress may be a far more partisan body today than at other times in its history, but it’s hard to imagine a sufficient number of lawmakers going along with what amounts to politically motivated impeachments.

Then the subpoena-and-if-necessary-arrest method. Good luck with that. Certainly presidents have historically rejected — and been successful in rejecting — demands to explain themselves to Congress under oath. As a co-equal branch of government it would be astonishing if members of the judiciary didn’t also reject the idea that they were required to explain themselves to Congress. (And it’s hard to imagine a Supreme Court that has zealously protected its independence hearing an inevitable court case on the matter and not rejecting the idea that judges could be subpoenaed before Congress.) The less said about the arrest of judges the better, both because it would likely begin a constitutional showdown and because, frankly, it sounds like nothing more than red meat to the base.

Look, I get the knock against activist judges. I really do. The problem to me has always been that an “activist” is in the eye of the beholder. When someone disagrees with your ruling, or doesn’t agree with the rights you as a federal judge see inherent in a law or in the Constitution, then you’re an activist. But if someone agrees with your ruling, then of course you were just upholding the law. Indeed, there are myriad examples of judges appointed by Republicans and Democrats alike engaging in “activist” behavior. (Conservative columnist George Will was particularly eloquent on this point in the second half of his Nov. 4 column.)

Of course, there are also failsafes built into the system. We have appeals courts and, failing that, the Supreme Court, to deal with rulings that stray too far from sensibility. Many people vote for president knowing that their candidate will appoint their kind of judge. And barring that, we have a Congress that can write new laws or amend the Constitution to undo the supposed damage from those judicial rulings — provided support for those measures is widespread and generally accepted.

See again: Checks and balances, separation of powers. If you don’t like something about your government, there are plenty of ways within the existing, flexible, well-conceived system put into place by our Founders (supposedly revered by those whom Gingrich was trying to impress by this little policy bomb), to change what you don’t like.

You don’t need to invent new ways to do what can already be done.

It’s also interesting to note that two of George W. Bush’s attorneys general seem to agree, with Michael Mukasey saying Gingrich’s suggestions are “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle.” (For those who didn’t follow the link, Alberto Gonzales is the other.)